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OSHA Publishes FAQs on Face Coverings in the Workplace

June 17, 2020 Leave a comment

AET Headshot Photo 2019 (M1344539xB1386)By: Amanda E. Thibodeau

The Occupational Safety and Health Administration (OSHA) recently published additional recommendations in the form of FAQs related to the use of face masks in the workplace. The new guidance covers the differences between PPE, cloth face masks, and surgical masks, and what the current OSHA regulations require of employers. OSHA clarifies that the new FAQs do not place new regulatory burdens on employers, but are instead provided to assist employers in providing a safe workplace under current regulations.

The Occupational Safety and Health Act’s General Duty Clause, Section 5(a)(1), requires employers to provide their employees with “a workplace free from recognized hazards likely to cause death or serious physical harm.” This generally requires employers to adopt strategies and other control measures to protect their workers from known hazards. While cloth face coverings are encouraged by the Centers for Disease Control (CDC), current OSHA regulations do not require cloth face coverings. However, OSHA does have regulations and standards on when PPE is required or recommended. It also notes that cloth face coverings or even surgical face masks are not a substitute for PPE, such as N95 masks, under OSHA’s PPE standards.

OSHA’s FAQs detail the differences between cloth face coverings, surgical masks, and respirators, and the merits and protections of each. OSHA recommends that even though cloth face coverings are not required under its regulations, employers may choose to adopt such a policy as a control measure, and OSHA does encourage their use. OSHA notes, however, that whether an employer chooses to require or encourage masks will be highly dependent on the specific circumstances of each worker, workspace, and work requirements. In some instances, the wearing of a face covering may increase other hazards, and employers should be cognizant of evaluating such risks when forming any policies on face coverings. OSHA also emphasized that face coverings are not a substitute for social distancing measures, and employers must still adopt such strategies with or without face coverings.

OSHA additionally made clear that for industries or situations where respirators and other PPE are required by the presence of applicable workplace hazards, the regulations require that employers attempt other mitigation and control strategies before requiring respirators – but when respirators cannot be obtained due to supply issues (or other unavailability), employers cannot substitute cloth or surgical masks. For example, where asbestos is present and creates an imminent danger to the worker, the employer must attempt other control issues (engineering, administrative, and work practice controls) first. If the control measures do not eliminate the hazard and respirators are not available, the employer must delay the task, if feasible, to avoid exposing the worker to the hazardous condition.

For more information, please contact Amanda Thibodeau.

SCOTUS Rules on Title VII’s Protections for LGBTQ+ Employees

June 17, 2020 Leave a comment

AET Headshot Photo 2019 (M1344539xB1386)By: Amanda E. Thibodeau

The U.S. Supreme Court released its highly anticipated landmark decision on whether Title VII of the Civil Rights Act of 1964 (“Title VII”) includes sexual orientation and gender identity as protected from employment discrimination. The Court, in a 6-3 decision, held that the term “sex” in Title VII protects LGBTQ+ employees from employment discrimination.

The Supreme Court reviewed three consolidated cases:  Bostock v. Clayton County, Georgia, No. 17-1618; Altitude Express Inc. v. Zarda, No. 17-1623; and R.G. & G.R. Harris Funeral Homes Inc. v. EEOC, No. 18-107. Morse previously discussed the facts of these cases here. Justice Gorsuch wrote for the majority and was joined by Chief Justice Roberts, and Justices Ginsburg, Breyer, Sotomayor, and Kagan.  Justices Thomas, Alito, and Kavanaugh dissented.

The cases turned on whether Title VII’s prohibitions on discrimination “because of sex” included gay and transgender employees. As Justice Gorsuch writes,

Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear. An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”

Justice Gorsuch explains that under the plain terms of Title VII, an employer is in violation when it takes an adverse action against an employee based, at least in part, on sex. Gorsuch emphasizes that “changing the employee’s sex would have yielded a different choice by the employer.” For example, the Court writes, with two employees who are both attracted to men and are, otherwise, identical, but one is male and one is female, if the employer fires the male employee because he is attracted to men, while keeping the female employee, then the employer has violated Title VII. Discrimination against LGBTQ+ employees, Gorsuch made clear, “necessarily entails discrimination based on sex; the first cannot happen without the second.”

The majority also held that other factors, along with sex, may contribute to an employer’s decision. In other words, the employee’s sex, including their homosexuality or gender identity, “need not be the sole or primary cause of the employer’s adverse action” to run afoul of Title VII.

The dissent written by Justice Alito emphasizes that because homosexuality and gender identity were not commonly known or supported in 1964, the drafters of Title VII did not intend to include LGBTQ+ employees in its protections. Instead, they argue, “because of sex” was meant only to protect against treating women differently than men, and vice versa. Justice Kavanaugh filed his own dissent which makes the argument that while he agrees that Title VII should be expanded to cover sexual orientation, it is not the job or responsibility of the Court to amend Title VII. Instead, that power “belongs to Congress and the President in the legislative process….”

Of note, the Court did not come to a decision on how religious freedom laws, such as the Religious Freedom Restoration Act, would affect such Title VII cases, as none of the litigants raised the issue on appeal. But, the Court did acknowledge that these “are questions for future cases….”

Two of the three named plaintiffs sadly passed away prior to the Court’s decision, but their cases will now have significant implications for employers and LGBTQ+ employees across the country. Up until this decision, many states and jurisdictions were either split or silent on whether Title VII protected LGBTQ+ employees. Even on the federal level, the Equal Employment Opportunity Commission (EEOC) and the U.S. Department of Justice held positions contrary to each other. Now that the highest Court has spoken on the issue, states and agencies alike will now be generally aligned in their positions in protecting LBGTQ+ employees and prosecuting employers who take discriminatory actions. Some states, like Massachusetts, already provided their own individual protections based upon sexual orientation and gender identity, but many states previously did not. Employers should review their internal anti-harassment policies and make sure employees are trained on the prevention and reporting of any discrimination.

For more information, please contact Amanda Thibodeau.

PPP Loan Program: Analysis of Treasury Department Interim Final Rule on Affiliation; Impact on Portfolio Companies

April 6, 2020 Leave a comment

MLM Headshot Photo 2019 (M1341570xB1386)By: Matthew L. Mitchell

On April 3, 2020, the United States Treasury Department issued “Interim Final Rules” and a related guideline concerning the Paycheck Protection Program’s “Affiliation Rule.”   The Interim Final Rule and guideline may be found here:

The instructions included in the Interim Rule and Guideline significantly limit, by application of the Affiliation Rule, the types of businesses that are eligible to apply for loans under the Paycheck Protection Program.  Of particular note:  The Interim Rule and Guideline apply the restrictions of the Affiliation Rule to start-up and emerging businesses, likely precluding many such companies from access to PPP loans funds.

The Morse Employment Law team is following this topic closely. Read our latest COVID-19 Alert for more information.

DOL Releases New Guidance for Compliance with CARES Act and FFCRA

April 3, 2020 Leave a comment

AET Headshot Photo 2019 (M1344539xB1386)By: Amanda E. Thibodeau

The U.S. Department of Labor (DOL) announced new guidance to help states with administration of the new unemployment provisions part of the Families First Coronavirus Response Act (FFCRA). It also updated and added additional guidance for the paid sick leave and expanded family and medical leave implementation under the FFCRA.

The new unemployment guidance provides help to states in implementing the temporary emergency state staffing flexibility provision of the CARES Act. It also provides help to states in determining eligibility requirements for applicants – especially in the area of gig workers and independent contractors, who are not typically eligible for unemployment benefits. The new guidance can be found here.

The guidance added by the DOL for the paid sick leave and expanded family and medical leave implementation includes a webinar to help employers determine eligibility and answer other questions related to benefits and protections under the FFCRA. The DOL also added additional materials to its Questions and Answers and added more workplace posters in additional languages. You may view these new materials here.

The Morse Employment Law team is following this, and other matters related to COVID-19 responses, and will continue to report as appropriate.

DOL Posts Temporary Rule Issuing Regulations on Families First Coronavirus Response Act

April 2, 2020 Leave a comment

AET Headshot Photo 2019 (M1344539xB1386)By: Amanda E. Thibodeau

On April 1, 2020, the U.S. Department of Labor (DOL) posted a temporary rule issuing regulations on the Families First Coronavirus Response Act (FFCRA).  In particular, the new regulations deal with implementation of the Emergency Paid Sick Leave Act (EPSLA) and Emergency Family and Medical Leave Expansion Act (EFMLEA) portions of the FFCRA. The regulations are temporary and will expire December 31, 2020, and will not affect the Family Medical Leave Act beyond that date.

The new regulations shed light on several important areas of the FFCRA.
Our COVID-19 Alert addresses a few key takeaways on the following topics:

  • Self-quarantine
  • Effect on FMLA Leave and Paid Time Off Used Concurrently
  • Small Business Exemption
  • Intermittent Leave
  • Notice and Leave Documentation

The new regulations take effect immediately and contain many more details concerning the implementation of the FFCRA. Please see our previous Alert on the FFCRA for additional requirements under the new law, or reach out to our Morse Employment Law Team for help.

SBA Paycheck Protection Program (“PPP”)

April 1, 2020 Leave a comment

JEH Headshot Photo (M1160809xB1386)By: Joseph E. Hunt

On March 31, 2020, the Department of the Treasury (“Treasury”) issued guidance for the Paycheck Protection Program (“PPP”), one of the hallmarks of the Coronavirus Aid, Relief and Economic Security (“CARES”) Act designed to provide up to $350 billion in short term loans to small businesses affected by the COVID-19 pandemic.

According to information provided by Treasury, while PPP loans can only be made by private lenders who are certified by the Small Business Administration (“SBA”), they are fully guaranteed by the SBA. These PPP loans are made for a two-year period, and provide a 0.5% fixed interest rate with repayments deferred for six months.

An applicant business is eligible to obtain a PPP loan equal to the lesser of (a) $10 million or (b) 250% of its average total monthly payroll costs over a trailing 12-month period, as measured from the loan origination date. Loan amounts will be forgiven as tax free cancellation of indebtedness as long as (i) the loan proceeds are used to cover payroll costs, mortgage interest costs, rent expenses, and utility costs over an eight (8) week period beginning as of the origination date, and (ii) employee and compensation levels are maintained.

Per Treasury, the underwriting standards for eligibility are relaxed, and private lenders making PPP loans will be required to verify that the applicant business was in operation as of February 15, 2020, and that it had employees for whom it paid salaries and payroll taxes.

The application window opens on Friday, April 3, 2020 for small businesses and sole proprietorships and Friday, April 10, 2020 for independent contractors and self-employed individuals. Applications can be made through any SBA-certified private lender.

Additional resources are available on the Treasury’s website.

Morse is following this topic closely. Please feel free to reach out to your Morse contact, or to speak with Joe HuntAmanda Thibodeau, or Matt Mitchell directly, should you have any questions.

Read our latest COVID-19 Alert.

DOL Issues Revised Emergency Paid Sick Leave Guidance; Limits Scope Of Small Business Exemption

March 31, 2020 Leave a comment

MLM Headshot Photo 2019 (M1341570xB1386)By: Matthew L. Mitchell

As previously reported in an earlier Employment Law Alert, the emergency paid sick leave provisions of the Federal Families First Coronavirus Act (the “FFCA”) take effect April 1, 2020.

In anticipation of that effective date, the federal Department of Labor (the “DOL”) has published a revised and expanded “Questions and Answers” Guidance (the “Guidance”) concerning the FFCA.

This guidance addresses 59 distinct subject matters that relate to the complex application of the FFCA.  Of particular note:  The Guidance defines the scope of the FFCA exemption that applies to employers with fewer than 50 employees.

The text of FFCA implies a general exemption, from the paid sick leave requirements of the FFCA, for employers with fewer than 50 employees, that are experiencing economic hardships as a result of the coronavirus outbreak.  Through the Guidance, the DOL adopts a narrowed interpretation of this small business exemption:

“A small business is exempt from certain paid sick leave and expanded family and medical leave requirements if providing an employee such leave would jeopardize the viability of the business as a going concern. This means a small business is exempt from mandated paid sick leave or expanded family and medical leave requirements only if the:

  • employer employs fewer than 50 employees;
  • leave is requested because the child’s school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons; and
  • an authorized officer of the business has determined [certain financial exigencies exist.]”

Guidance, Q&A 59.

As such, unlike previous reports, small businesses are not broadly exempt from FFCA emergency paid leave requirements, and must provide employees with emergency paid leave benefits absent the limited exceptions described above. For example, under the Guidance, a small business is required to provide 80 hours of emergency paid sick leave to an employee that is absent from work as a result of a COVID-19 related illness.

In addition to the Guidance, in the coming days, the Internal Revenue Services is expected to publish instructions related to tax credits available to employers that incur expenses related to FFCA emergency leaves.

The rules and guidelines that relate to the FFCA, and to the other federal and state coronavirus relief programs, are moving targets.  The Morse Employment Law team is following these, and other matters related to COVID-19 responses, and will continue to report as appropriate.

Read our latest COVID-19 Alert.

DOL Releases New Fact Sheets and FAQs for Compliance with Families First Coronavirus Response Act

March 25, 2020 Leave a comment

AET Headshot Photo 2019 (M1344539xB1386)By: Amanda E. Thibodeau

The U.S. Department of Labor (DOL) released its first wave of new guidance as part of its initiative to help employers implement and comply with the new Families First Coronavirus Response Act (“the Act”).

The DOL posted a Fact Sheet for Employees, a Fact Sheet for Employers and a Questions and Answers document on a number of compliance aspects of the Act, including how an employer counts the number of their employees to determine coverage; how small businesses can obtain an exemption; how to count hours for part-time employees; and how to calculate the wages employees are entitled to under this law.

The DOL expects to release further guidance on these topics later this week. Additional DOL guidance on COVID-19-related topics, including new workplace posters can be found here.

The Morse Employment Law team is following this, and other matters related to COVID-19 responses, and will continue to report as appropriate.

IRS, DOL, and Treasury Issue Plan on Implementation of Payroll Tax Credit, Paid Leave and Other Employment-Related Provisions of the Families First Coronavirus Response Act

March 24, 2020 Leave a comment

AET Headshot Photo 2019 (M1344539xB1386)The Internal Revenue Service (IRS), U.S. Department of Labor (DOL), and U.S. Treasury Department issued a joint statement highlighting the employment-related provisions of the Families First Coronavirus Response Act (“the Act”), which was signed into law by President Trump on March 18, 2020 (see our previous alert on this subject here).  The three departments offered a preview for small and mid-size businesses related to the implementation of these various provisions.  A summary of their highlights is below.

  • DOL plans to release regulations relating to the Act by April.  While employers are not required to comply with the Act until April 2, the DOL and IRS made clear that employers, unless exempted, may begin to provide paid leave under the Act and take advantage of the available tax credits immediately.  The anticipated regulations will provide further guidance on the sick and child care leave requirements of the Act.
  • DOL plans to release emergency guidance related to small business exemptions related to leave.  The Act provides an exemption for businesses with less than 50 employees from leave requirements related to school and daycare closings where the leave requirements would threaten the viability of the business.  The DOL plans to issue guidance with “simple and clear criteria” on the qualifications related to this exemption.
  • DOL will be issuing a temporary non-enforcement policy to allow employers to come into compliance.  Under the temporary policy, the DOL will not bring enforcement actions against employers for violations of the Act, but instead will work with employers to assist in compliance with the Act, provided the employer has acted reasonably and in good faith.
  • The IRS will be releasing guidance later this week about how employers can obtain the tax credits related to providing sick or child care leave.  In short, employers will obtain the credit by withholding the amount of money equal to the cost of leave provided from their payroll taxes, rather than depositing with the IRS.  If the amount withheld is not enough to cover the paid leave provided, employers will be able to file a request for payment on an accelerated basis, to be processed in two weeks or less.  The IRS will release further details on the procedure in their anticipated guidance.

The Morse Employment Law team is following this, and other matters related to COVID-19 responses, and will continue to report as appropriate.

Equal Opportunity Commission Issues Updated Guidance Related to COVID-19 Preparedness for “Essential Businesses”

March 24, 2020 Leave a comment

MLM Headshot Photo 2019 (M1341570xB1386)The federal Equal Employment Opportunity Commission (the “EEOC”) has issued revised guidelines that define Americans with Disabilities Act (“ADA”) compliance standards for employers operating under current COVID-19 pandemic conditions.

In general, the ADA broadly restricts business decisions that consider employee health or medical conditions.  Through the guidelines, the EEOC has temporarily suspended certain ADA restrictions in an effort to permit “Essential Businesses” – businesses that are exempted from various shelter-in-place and business restrictions order now in effect in several regions – to adopt practical strategies to maintain safe business operations.

Revised EEOC guidelines.

Several of the key concepts are below:

  • With respect to employee inquiries regarding COVID-19 symptoms: “An employer may send home an employee with COVID-19 or symptoms associated with it.  Employers may ask employees who report feeling ill at work, or who call in sick, questions about their symptoms to determine if they have or may have COVID-19.”
  • With respect to workplace infection control strategies: “Because the CDC and state/local health authorities have acknowledged community spread of COVID-19 and issued attendant precautions as of March 2020, employers may measure employees’ body temperature. As with all medical information, the fact that an employee had a fever or other symptoms would be subject to ADA confidentiality requirements.  Similarly, with respect to the current COVID-19 pandemic, employers may follow the advice of the CDC and state/local public health authorities regarding information needed to permit an employee’s return to the workplace after visiting a specified location, whether for business or personal reasons.”
  • With respect to reasonable accommodation requests by employees that are unrelated to COVID-19: “The rapid spread of COVID-19 has disrupted normal work routines and may have resulted in unexpected or increased requests for reasonable accommodation.  Although employers and employees should address these requests as soon as possible, the extraordinary circumstances of the COVID-19 pandemic may result in delay in discussing requests and in providing accommodation where warranted.  Employers and employees are encouraged to use interim solutions to enable employees to keep working as much as possible.”
  • With respect to hiring practices during COVID-19 pandemic: “An employer may screen job applicants for symptoms of COVID-19 after making a conditional job offer, as long as it does so for all entering employees in the same type of job. This ADA rule allowing post-offer (but not pre-offer) medical inquiries and exams applies to all applicants, whether or not the applicant has a disability.”

The Morse Employment Law team is following this, and other matters related to COVID-19 responses, and will continue to report as appropriate.

Resources for Employers Managing the Impact of COVID-19

March 20, 2020 Leave a comment

2015-01-05_8-57-41By: Amanda E. Thibodeau

COVID-19 is causing significant disruption at every level of business – and responses are varying and evolving rapidly. Morse is monitoring the situation closely on behalf of our clients. To help keep you as up to date as possible, below we provide some helpful federal and state resources to help you and your business keep up on the latest as well.

  • Equal Employment Opportunity Commission (EEOC)
  • The U.S. Department of Labor (DOL)
  • Massachusetts Attorney General’s Office
  • Massachusetts Department of Unemployment Assistance (DUA)

See our website for additional information regarding these resources.

Congress Adopts Emergency Paid Family Medical Leave and Sick Time Standards; Contemplates Payroll Tax Deductions and Cash Payments to Offset Employer Costs

March 19, 2020 Leave a comment

2015-01-05_8-57-41By: Matthew Mitchell

On March 18, 2020, President Trump signed into law the Families First Coronavirus Response Act (the “Act”), which aggregates several new laws that apply to private-sector employers and employees affected by Coronavirus-related work disruptions.
The Act takes effect no later than 15 days after enactment, and remains in place until December 31, 2020.
Two significant provisions of the Act include: The Emergency Family and Medical Leave Expansion Act (The “EFMLEA”) and The Emergency Paid Sick Leave Act (The “EPSLA”).
Read more about these new laws in our latest Employment Law Alert.

Coronavirus Response Update – March 13, 2020

March 13, 2020 Leave a comment

MLM Headshot Photo 2019 (M1341570xB1386)By: Matthew Mitchell

The Coronavirus outbreak is creating unprecedented challenges for employers. Existing employment law standards and structures do not contemplate our present circumstances, and employers are increasingly faced with novel questions with respect to employee relations.

We are beginning to see some clarity on the subject, however. As government and organizational actors begin to deploy response strategies, best employment practices regarding Coronavirus concerns are emerging.

Matthew Mitchell provides answers to several common questions regarding the Coronavirus in the following COVID-19 Client Alert.

The Morse Employment Law Team is following this topic closely. Please contact us should you have any questions.

DOL Issues New Final Rule for Exempting Executive, Administrative, and Professional Employees under the FLSA

September 24, 2019 Leave a comment

By: Amanda Thibodeau

AET Headshot Photo 2019 (M1344539xB1386)The Department of Labor (DOL) released a final rule today, updating its regulations under the Fair Labor Standards Act (FLSA).  The final rule raises the threshold salary and annual compensation levels for exempting executive, administrative, and professional employees, including raising the “standard salary level” for exempting executive, administrative, and professional employees from the currently enforced level of $455 per week (the equivalent of $23,660 per year for a full-year worker) to $684 per week (the equivalent of $35,568 per year for a full-year worker).  It further allows employers the ability to apply a portion of bonuses or commissions received by those employees towards that salary level, for purposes of meeting the exemption. The final rule will be effective January 1, 2020.  For more information, or to review the final rule itself, visit the DOL’s announcement here.

For more information, please contact Matthew Mitchell or Amanda Thibodeau.

Artificial Intelligence in Recruiting and Hiring

August 21, 2019 Leave a comment

By: Amanda Thibodeau

Tommorowland Today:  The Illinois Legislature Responds to the Rise of A.I. in the Employment Sphere

AET Headshot Photo 2019 (M1344539xB1386)Artificial Intelligence, or AI, is no longer just a sci-fi movie device.  This branch of computer science has grown to become an essential part of the technology industry.  You may recognize your own use of AI in products such as Apple’s Siri, Amazon Echo, or Netflix, which all use learning and predictive technology to get smarter and learn your likes, dislikes, interests, and behavior.

AI has recently stepped into the recruiting and hiring world, with new platforms available to employers to collect, store, and use data to screen a candidate’s facial expressions and gestures, analyze their voice, speech patterns, and knowledge on a particular subject, and evaluate a candidate’s personality and predict their fit for a role.  As with other AI technology, the more candidates the AI platform interviews, the smarter it gets in its analyses.

Illinois is the first state to respond to the rise of such use of these AI platforms.  In May 2019 Illinois passed the Artificial Intelligence Video Act (“the Act”), which goes into effect January 1, 2020.  Under the Act, an employer wishing to use an AI platform to analyze a candidate’s interview must comply with several requirements:

  • Employer must notify the candidate that their interview will be videotaped and may be analyzed using AI;
  • Employer must obtain consent to analyze the video using AI;
  • Employer must provide information to the candidate on how the AI platform works and what it uses to evaluate candidates.

The Act applies to all candidates applying for an Illinois-based position, regardless of where the candidate is actually located.  The Act also prohibits employers from sharing the candidate’s video, “except with persons whose expertise or technology is necessary in order to evaluate an applicant’s fitness for a position.”  The candidate may also request that the video be destroyed within 30 days of a request.  This request also requires any recipient of the video to also destroy the video, including any electronically generated backup copies.

The Act itself is fairly short and does not contain any definitions or much guidance on interpretation.  Illinois is the first state to respond legislatively to this new use of AI in the employment context, and is therefore charting the course for now.  As the use of AI continues to grow in all industries, it is likely that other states may be playing catch-up sooner rather than later, and will likely use Illinois’ new Act as a model.

For more information, please contact Matthew Mitchell or Amanda Thibodeau.

IEP Meetings Covered Under FMLA

August 15, 2019 Leave a comment

By: Amanda Thibodeau

DOL Issues New Opinion Letter On the Intersection of IEP Meetings and the FMLA

AET Headshot Photo 2019 (M1344539xB1386)

Most employers and their human resources specialists are acquainted with the protections afforded to employees under the Family and Medical Leave Act (FMLA).  Quite often employers interact with the FMLA when an employee needs time off of work to recover from an extended illness or other medical issue, or to care for an employee’s family member.  A trap for the unwary, however, presents itself in a new Opinion Letter issued by the Department of Labor on August 8, 2019.

The Opinion Letter (FMLA2019-2-A) responds to an anonymous request from the parents of a school-aged child inquiring whether the FMLA protects the parents’ ability to take time off of work to attend their children’s Individualized Education Program (IEP) meetings.  The DOL unequivocally reached the conclusion that parents’ attendance at such IEP meetings were covered by the protections of the FMLA.

In the facts presented to the DOL, the children had qualifying health conditions under the FMLA that were certified by the children’s doctors.  The children’s doctors had also provided documentation to the wife’s employer that the children required intermittent care that would require her to miss work on occasion.  The wife’s employer had previously granted the wife’s requests for leave under the FMLA to bring the children to medical appointments in accordance with these certifications; however, the employer refused to grant FMLA leave for the wife to attend the children’s IEP meetings with the school, which are held four times per year.

The DOL focused on several aspects of the FMLA including that the FMLA permitted leave “to care for” a family member with a serious health condition, including “to make arrangements for changes in care.” See 29 C.F.R. § 825.124(b).  In narrowing in on these clauses, the DOL also relied upon its previous opinion letter (FMLA94, 1998 WL 1147751 (Feb. 27, 1998)), which found an employee was entitled to take FMLA leave to attend “care conferences” related to her mother’s health conditions.  Similarly, the DOL found that wife’s attendance at the children’s IEP meetings was “clearly essential” to the children’s care and noted that the children’s doctors need not be present at these meetings to qualify for intermittent leave under the FMLA.

Employers or human resources specialists presented with similar situations should be mindful of this guidance when analyzing whether such leave requests qualify under the FMLA.  Proper training of managers is recommended, including on what types of school meetings are covered and which may not be, and what types of documentation the managers can request from the employee to support the leave request.

For more information, please contact Matthew Mitchell or Amanda Thibodeau.

Amanda Thibodeau Speaking on MCLE Program on Employment Law Issues for Gig Workers

July 10, 2019 Leave a comment

AET Headshot Photo 2019 (M1344539xB1386)Employment attorney Amanda Thibodeau will be speaking on the MCLE program Employment Law Issues for Gig Workers, being held on Tuesday, July 30. The program will provide an overview of the current state of the law, how various governing bodies on the state and federal levels have grappled with companies and workers in the gig economy, and how each side can protect themselves and navigate changing employment laws in this arena. The agenda will include topics of discussion such as:

  • What is the “Gig Economy” and which employers and workers fall into this category
  • Overview of classifications of workers and legal consequences of misclassification
  • Reviewing recent state and federal guidance on classification issues
  • Reviewing states’ legislative responses governing gig employment
  • Understanding other common employment issues in the gig economy
  • Understanding how a gig business can mitigate its risks and what workers should do to protect themselves

For more information and to register, view the MCLE event page.

U.S. Supreme Court Rules EEOC Charge is Procedural Requirement, Not Jurisdictional

June 17, 2019 Leave a comment

AET Headshot Photo 2019 (M1344539xB1386)By: Amanda Thibodeau

As we have discussed previously, Title VII of the Civil Rights Act of 1964 (“Title VII”), is a federal statute that prohibits discrimination in employment on the basis of race, color, religion, sex, or national origin. It also prohibits retaliation against individuals who assert rights under the statute. To assert a claim under Title VII, the statute outlines that as a precondition to filing suit in federal court, a person must file a formal charge with the Equal Employment Opportunity Commission (EEOC) within 180 or 300 days of the alleged violation. But what happens if an individual fails to file such a charge, or fails to list every alleged violation in that charge?

On June 3, 2019, the U.S. Supreme Court answered that question with its ruling in Fort Bend Cty. v. Davis. In Davis, the plaintiff filed an initial charge with the EEOC alleging retaliation for reporting sexual harassment to her employer. While the EEOC case was pending, Ms. Davis contends she was fired for refusing to work on Sundays based upon her religious commitments. Ms. Davis attempted to add to the initial EEOC charge by handwriting “religion” on an EEOC intake questionnaire, but her EEOC charge was never formally amended. She then went on to file her case in federal court, alleging discrimination based upon religion and retaliation.

Several years into the litigation, Fort Bend filed a motion to dismiss based upon Ms. Davis’ failure to file an EEOC charge alleging religious discrimination. Fort Bend alleged the federal court did not have jurisdiction over the claim because Ms. Davis failed to meet Title VII’s charge requirement. The district court granted that motion. The U.S. Court of Appeals for the Fifth Circuit reversed, holding that Fort Bend waived the issue by waiting too long to raise it with the court.

The U.S. Supreme Court then weighed in this week affirming the Fifth Circuit’s opinion, holding that Title VII’s charge requirement is procedural rather than jurisdictional. The Court said Title VII’s charge requirement “is a processing rule, albeit a mandatory one, not a jurisdictional prescription delineating the adjudicatory authority of courts.” In short, while Title VII requires an individual to file a charge with the EEOC, the filing itself is not necessarily the act that triggers jurisdiction over the claim, and thus failing to file the charge is not necessarily fatal.

The Court’s ruling does not mean that plaintiffs are free to ignore such claim-processing requirements, however. The Court was clear that the failure to follow such requirements may still be fatal to plaintiffs’ claims; however, defendants must be careful to raise the issue early on – preferably in the answer or an early motion to dismiss. Otherwise, the procedural defects are deemed waived.

For more information on Title VII or other discrimination issues, please contact Matthew Mitchell or Amanda Thibodeau.

DOL Issues Opinion Letter Classifying Workers in the Gig Economy As Independent Contractors

June 6, 2019 Leave a comment

2015-01-05_8-57-41The U.S. Department of Labor (DOL) recently issued an Opinion Letter analyzing the classification of workers in the virtual marketplace or “gig economy.” This refers to companies that operate in the “on-demand” or “sharing” economy, using online and smartphone applications to connect consumers to service providers in a wide variety of services, such as transportation, cleaning, delivery, and shopping.

The DOL was asked to analyze the classification of such service providers under the Federal Labor Standards Act (FLSA), ultimately deciding that based upon the facts provided by the unidentified company in question, the service providers were independent contractors.

This is vitally important in that independent contractors are not afforded the same protections under the FLSA as employees. For example, employees are entitled to minimum wage, overtime pay, and other benefits under the FLSA, while independent contractors are not. Continue reading in our Employment Law Alert.

Title VII at SCOTUS

June 3, 2019 Leave a comment

AET Headshot Photo 2019 (M1344539xB1386)By: Amanda Thibodeau

In April 2019 the U.S. Supreme Court announced it would hear three cases related to discrimination based upon sexual orientation and gender identity during its next term. The Court will analyze the scope of Title VII of the Civil Rights Act of 1964 (“Title VII”), which prohibits discrimination on the basis of a protected class. Currently, the lower courts are split on whether the term “sex” in the statute includes sexual orientation and/or gender identity. Both the Second and Seventh Circuit Courts as well as the Equal Employment Opportunity Commission (EEOC) all interpret Title VII as covering sexual orientation, while the Eleventh Circuit disagrees.

In two of the cases, Altitude Express v. Zarda and Bostock v. Clayton County, Georgia, the Court will consider whether Title VII’s prohibition on sex discrimination protects individuals from discrimination on the basis of sexual orientation. In R.G. & G.R. Harris Funeral Homes v. EEOC, on the other hand, the Court will consider whether discrimination on the basis of gender identity is prohibited under Title VII.

The Zarda case involves a skydiving instructor who was fired after he disclosed to a customer that he was gay. Mr. Zarda subsequently died in a 2014 skydiving accident, and his estate has been pursuing the case on his behalf. The U.S. Court of Appeals for the Second Circuit interpreted Title VII to include sexual orientation under its protections. Mr. Zarda’s former employer then appealed that decision to the U.S. Supreme Court.  Noteworthy is that the EEOC and the Department of Justice (DOJ) both submitted briefs in the Second Circuit which were inapposite of each other: the EEOC arguing that Title VII protects discrimination based upon sexual orientation, while the DOJ argued it does not.

In the Bostock case, a child welfare services coordinator claimed he was fired for being gay. The Eleventh Circuit ruled against him, citing a 1979 5th Circuit case that held homosexuality is not prohibited by Title VII.

The third case, Harris, involves a transgender woman, Aimee Stephens, who was fired after informing her employer, a funeral home, that she was a transgender woman and would start wearing women’s clothing to work. Her former employer defended itself in the case by claiming that it believed gender transition violated “God’s commands.” The federal district court initially ruled that Ms. Stephens was discriminated against, but that the employer was protected by the Religious Freedom Restoration Act. The Sixth Circuit then reversed the district court, holding that not only is transgender discrimination prohibited under Title VII, but also that the employer was not protected by the Religious Freedom Restoration Act. The funeral home appealed.

Some states, like Massachusetts, already provide their own individual protections based upon sexual orientation and/or gender identity, but many states do not. The Supreme Court’s determinations in these cases, therefore, have the potential to change the landscape of employment discrimination law nationwide, and will be closely watched.  Advocacy groups, such as the American Civil Liberties Union (who is co-counsel in two out of three cases), are particularly concerned about the potential impact of the Court’s decisions. Decisions in these cases are expected by June 2020.

Morse will watch these cases closely and will provide updates as new information becomes available.

For more information on Title VII or other discrimination issues, please contact Matthew Mitchell or Amanda Thibodeau.